Lankadasari Lachaiah vs Lankadasari Venkatamma
2022 Latest Caselaw 4030 Tel

THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY

                     C.R.P.No.749 OF 2022
ORDER:

This civil revision petition is directed against the

order dated 22.02.2021 in I.A.No.69 of 2019 in C.F.No.1026 of

2012 in an unnumbered first appeal on the file of the learned IX

Additional District Judge, Sircilla, wherein the said application

filed by the petitioners herein under Order XLI Rule 3(A) CPC to

condone the delay of 645 days in filing the appeal against the

judgment and decree dated 01.05.2017 passed by the Junior Civil

Judge, Vemulawada in O.S.No.84 of 2011, was dismissed.

2. Heard the learned counsel for the petitioners. None appeared

for the respondent, through served with notice. Perused the record.

3. Petitioners 1 and 2 herein are defendants in the suit. The suit

was filed by the respondent/plaintiff for perpetual injunction

restraining the defendants, their agents and workmen from entering

into and interfering with the peaceful possession and enjoyment of

the plaintiff over the suit schedule property. The said suit was

decreed by the trial court by judgment dated 01.05.2017.

Aggrieved by the same, the petitioners filed appeal before the

learned IX-Additional District Judge. As there was a delay of 645

days in filing the appeal, the petitioners filed I.A.No.69 of 2019

seekining condonation of the same. By the order impugned in this

revision, the said application was dismissed.

4. It is stated in the affidavit filed in support of I.A.No.69 of

2019 by the second petitioner that the appeal was not filed within

time due to the fact that the first petitioner was suffering from

cardiac problem and underwent surgery and that the entire family

was put to severe financial crisis. The said delay was neither

willful nor intentional. The respondent filed counter stating that

the petitioners have not filed any documentary proof to show that

they are unable to move due to ill-health of the first petitioner and

also that the delay of 645 days has not been explained properly.

5. The court below after hearing both sides and after perusing

the documents filed along with application dismissed I.A.No.69 of

2019. The court below at paragraphs 7 and 8 of the order held as

follows:

"The reasons stated by the petitioners is that petitioner No.1/Lankadasari [email protected] Laxman has undergone treatment in Tulasi Hospital, due to ill-health

and he filed the hospital records of Hospital and Yashoda Hospital to show that he undergone treatment. A medical report of Yashoda Hospital, i.e., discharge summary shows that the petitioner No.1 was admitted on 04.12.2017 and discharged on 06.12.2017, but whereas, the judgment was pronounced on 01.05.2017. The entire medical record issued by Tulasi Hospital, Yashoda Hospital, Hyderabad and Usha Mullapudi Cardiac Centre Hospital, Hyderabad, and all are pertaining to petitioner No.1 for the period from November, 2017 to February, 2018. But the petitioner No.2 has filed affidavit stating that because of the petitioner No.1 hospitalized or undergone treatment, the Appeal could not be preferred. If the petitioner No.1 is suffering from ill-health, the petitioner No.2 ought to have preferred the Appeal within the reasonable time, but they failed to do so. Now the present petition filed on the ground that the petitioner No.1 was suffering ill-

health, due to which 645 days was caused. But petitioner No.2 who filed this petition along with the affidavit has stated in his affidavit that the petitioner No.1 was suffering from cardiac problem and due to economical crisis, the Appeal could not be preferred. But the petitioner No.2 has nothing stated as to why he has not taken steps to prefer Appeal. Since the petitioner No.2 is also defendant No.2 in the main suit ought to have preferred the Appeal notwithstanding with the health condition of the petitioner No.1.

Hence, the reasons stated by the petitioner No.2 in his affidavit is not satisfactory as the judgment was pronounced by the trial court on 01.05.2017 and whereas, the petitioner No.1 seems to be undergone treatment from the month of November, 2017 onwards.

But from the date of decree to till consultation of the doctor at Tulasi Hospital, dated 20.11.2017, there was six months period available to prefer the Appeal by the petitioners. Therefore, in my considered opinion the reasons stated by the petitioners cannot be considered as sufficient cause on the part of the petitioners. Hence, accepting the submissions of the counsel for the respondent/plaintiff the petition filed under Order 41 Rule 3(A), C.P.C., is deserves to be dismissed".

6. Aggrieved by the same, the petitioners filed the present

revision on the ground that the court below failed to exercise its

jurisdiction to consider the contentions on merits. Merely because

the petitioners have not accounted the time between the date of

decree and commencement of treatment of the first petitioner, the

court below ought not to have dismissed the application filed for

condonation of delay.

7. Learned counsel for the petitioners submits that the

petitioners could not file the appeal within the stipulated time as

the first petitioner was suffering from cardiac problem and

underwent surgery and that the entire family was put to severe

financial crisis and thus, there occurred a delay of 645 days in

filing the appeal. The said delay was neither willful nor

intentional. The trial court has not considered the medical record

of Tulasi Hospital, Yashoda Hospital and Usha Mullapudi Cardiac

Central Hospital where the first petitioner had taken treatment and

underwent surgery. In support of his contentions, he relied on the

judgment of the Apex Court in COLLECTOR, LAND

ACQUISITION, ANANTNAG AND ANOTHER v. MST.

KATIJO AND OTHERS1.

8. Thus, the question that arises for consideration is whether

there is 'sufficient cause' to condone the delay of 645 days in

preferring the appeal.

9. Undisputedly, the suit filed by the respondent in O.S.No.84

of 2011 for perpetual injunction against the petitioners was decreed

by the trial court by judgment dated 01.05.2017. The petitioners

preferred appeal before the appellate court along with an

application to condone the delay of 645 days in filing the appeal.

10. The Apex Court in MST. KATIJO's case (supra) at para 3

held as follows:

"The legislature has conferred the power to condone delay by enacting Section 51 of the Indian Limitation Act of 1963 in order to enable the Courts to do

1 (1987) 2 SCC 107

substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice--that being the life-

purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is con- doned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of

culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so".

11. Keeping the above principles in view, making a justice-

oriented approach from this perspective, there was sufficient cause

for condoning the delay in preferring the appeal. It is stated in the

affidavit filed in support of condone delay application by the

second petitioner that first petitioner was suffering from cardiac

problem and underwent surgery and further the entire family was

put to severe financial crisis and the said delay was neither willful

nor intentional.

12. It appears from the impugned order the first petitioner has

undergone treatment in Tulasi Hospital and Yashoda Hospital due

to ill-health and the petitioners have filed hospital records to show

the treatment taken by the first petitioner. A perusal of the

discharge summary of the first petitioner shows that he was

admitted on 04.12.2017 and was discharged on 06.12.2017. The

medical record of Tulasi Hospital, Yashoda Hospital and Usha

Mullapudi Cardiac Centre Hospital, Hyderabad shows that the first

petitioner has taken treatment from November, 2017 to February,

2018. The judgment of the trial court is dated 01.05.2017. As

rightly held by the trial court, if the first petitioner is suffering from

ill health, notwithstanding with his health condition, the second

petitioner ought to have preferred the appeal. Further, the trial

court has also rightly held that six months period was available for

the petitioners to file appeal from the date of decree till

consultation of first petitioner at Tulasi Hospital on 20.11.2017.

Moreover, the second petitioner has not stated any reasons for

not taking steps to prefer the appeal in time even after the first

petitioner taking treatment in February, 2018. No justifiable or

sufficient cause is shown by the second petitioner in the affidavit

filed in support of the condone delay application.

13. The expression 'sufficient cause' should be construed

liberally on facts. The substantive rights should not be ignored

because of delay. A distinction can be made between delay of few

days and inordinate delay, causing prejudice to the other side.

In the instant case, there appears to be negligence/inaction on the

part of the petitioners in preferring the appeal. The delay of 645

days in preferring the appeal without giving justifiable reasons or

showing sufficient cause cannot be condoned on the reasons stated

by the petitioners in the affidavit filed in support of the condone

delay application.

14. For the forgoing reasons, I am of the view that the

petitioners failed to show any sufficient cause for condoning the

delay of 645 days in filing the appeal. The impugned order does

not suffer from any infirmity or illegality warranting interference.

15. In the result, the civil revision petition is dismissed. There

shall be no order as to costs.

16. Pending miscellaneous petitions, if any, stand closed.

_______________________ A.SANTHOSH REDDY, J 03.08.2022 Lrkm